ELSON MACHINES (P) LTD. versus COLLECTOR OF CENTRAL EXCISE

PATHAK, CJ. This appeal is directed against the judgment and order of the Customs, Excise and Gold Control Appellate Tribunal on the question whether the appellant is djsentitled to the concession granted by Notification No. 80/80-C.E. dated 19 June 1980 to small scale manufacturers in the matter of Central Excise duty.

pp. 879–880, margin G

The appellant is a private limited company. It has its registered office and factory in the State of GujRrat. It is engaged in the business of manufacturing and selling electnc motors.

p. 880

In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government issued Notification No. 80/80-C.E. dated 19 June 1980, which, as it stood during (he relevant period, exempted from duty excisable goods falling under certain Item Numbers of the First Schedule to the Central Excises and Salt Act, 1944 as specified in the Table annexed to the Notification and of the particular description set forth in that Table. But paragraph 2 of the Notification declared:

p. 880

"Nothing contained in this notification shall apply to a manufacturer,- (i) if the aggregate value of clearances of all excisable goods by him or on his behalf, for home consumption, from one or more factories, during ~he preceding financial year, had exceeded rupees twenty lakhs, (ii) if the aggregate value of clearances of the specified goods by him or on his behalf, for home consumption, from one or more factories, during the preceding financial year,

p. 880, margin C

had exceeded rupees fifteen lakhs."

p. 880, margin D

The appellant availed of exemption under the Notification for the periods 1 April 1980 to 30 November 1980 and 1 April 1981 to 30 September 1981 claiming that the clearances during the preceding years were confined to the stipulated limit. The Excise Authority, in the belief that the appellant had wrongly availed of exemption as its clearances exceeded the limit of 15 lakhs, issued notice to the appel- !ant to show cause against an assessment of the differential duty for those periods. The appellant attempted to show cause, but the Assistant Collector of Excise did not accept the case set up by the appellant and imposed the demand. On appeal the Collector of Contra! Excise (Appeals) set aside the demand for the period 1 April 1980 to 30 November 1980, but he upheld the demand for the period 1 April 1981 to 30 September 1981. In the further appeal before the Customs, Excise and Gold Control Appellate Tribunal the entire question was whether the appellant had exceeded the limit of Rs.15 lakhs · A when effecting clearances during the financial year 1980-1981 and was, therefore, not entitled to exemption for the period 1 April 1981 to 30 September 1981.

pp. 880–881, margin F

For the financial year l April 1980 to 31 March 1981 the appel- B !ant had disclosed a clearance value of Rs.13,43,443.55 on account of electric motors for home consumption and a clearance valu.e of Rs.6,51,138.50 on account of electric motors "for captive consumption" in the manufacture of monoblock pumps. It was contended by the appellant that the electric motors used for making monoblock pumps could not be taken into consideration when calculating the clearances eligible under the Notification. According to the appellant C the captive consumption did not amount to clearance. The claim was disputed by the Department, which relied on Explanation V to the aforesaid Notification dated 19 June 1980. The Explanation declared:

p. 881

"Explanation V-Where any specified goods (hereinafter D referred to as inputs) are used for further manufacture of specified goods (hereinafter referred to as finished goods) within the factory of production of inputs and where such inputs and finished goods fall under the same item of the said First Schedule to the said Act, the clearances of such inputs for such use shall not be taken into account for the E purposes of calculating the aggregate value of clearances

p. 881

under this notification."

p. 881

The Appellate Tribunal observed that in terms of the Explanation the clearances of inputs could not be taken into account for calculating the aggregate value of clearances only when the inputs and f finished products fall under the same item of the First Schedule to the Act. It pointed out that while electric motors were mentioned under Tariff Item 30, power driven pumps were specified under Tarrif Item 30-A. It Sl!id that consequently the electric motors captively consumed as inputs in the manufacture of power driven pumps could not be excluded when determining the appellant's clearances. The appellant G urged that the appellant had mistakenly stated that electric motors had been used for monoblock pumps whereas only rotors and stators which were integral components of monoblock pumps had been used, and that, therefore, the same Tariff Item was attracted, thus entitling the appellants to the concession. The submission was rejected by the Appellate Tribunal. Accordingly, it found that the appellant had fl exceeded the limit stipulated by Notification No. 80/80-C.E. dated 19 June, 1980, and was, therefore, disentitled to the concession.

pp. 881–882

It is contended before us that the Appellate Tribunal· erred in rejecting the submission of the appellant that the goods manufactured · by the appellant did not en!Itle to the benefit of Explanation V of the Notification. It 1s urged that the goods in question were rotors and stators, that they were integral componc:mts of monoblock motors and could not be considered as components of general purpose Motors and therefore fell within the same Tariff Item as monoblock pumps. The question has been considered by the Appellate Tribunal. It is a question of fact and we do not propose to entertain "it at this stage.

p. 882, margin A

It is then urged that stators and rotors should be considered under Tariff Item 68, which is a residuary item. The Appellate Tribunal has proceeded on the basis that what was manufactured by the appellant were electric motors. It is only in the alternative that it

p. 882, margin C

considered the submission of the appellant that the goods should be · regarded as rotors and stators. In the circumstances recourse cannot be had to Tariff Item 68 by the appellant.

p. 882, margin C

The next contention is that the goods in question cannot be said to have been cleared from the factory and therefore could not be included within the value of the clearances from the factory. The submission is that the goods were employed in the manufacture of monoblock pumps within the factory itself. We are not impressed by this contention. As soon as the manufacture of the goods was completed they must be regarded as goods available for clearance from the factory, and there is nothing to show that when fitted into monoblock pumps they were not removed to another part of the factory for that purpose. The process of manufacture of those goods is distinct, separate and complete in itself and at the end of the manufacturing process, the goods in question represent a completed product.

p. 882, margin D

The next submission on behalf of the appellant is that the Classification Lists had been approved earller and the Excise Authority was es topped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected.

p. 882, margin F

Finally it is pointed out by c<fonsel for the appellant that no recovery has bee~ made by appeUant from its constituents and therefore, it is said, the. demand should b_e set aside. Reference is made to Collector of Customs and Centi-al Excise and Anr. v. Oriental Timber Industries., [1985] 20 E.L.T. 202 {SC). We have perused the facts of that case and we find that the order made by the court there, so far as this aspect is concerned, was made on a concession of counsel for the Union of India and on the footing that the Union of India was not concerned with the collection of additional duty for earlier years but was merely concerned with the question of law involved in the case. We are also not satisfied that the facts upon which relief was granted in that case arise before us in this case.

pp. 882–883, margin G

In 'the result the appeal is dismissed with costs. H.L.C. Appeal dismissed

p. 883, margin B